Regina v Qinity [2010] SBHC 26; HCSI-CRC 200 of 2008 (15 June 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

V

RUSA QINITY

Date of Hearing: 15 June 2010
Date of Decision: 15 June 2010

R. Olutimayin and N. Kesaka for Crown
L. McSpedden and R. Tovosia for Qinity

SENTENCE ON INCEST

Cameron PJ:

1. On 14 June 2010, the defendant Rusa Qinity pleaded guilty in this Court to a charge of incest, the particulars being that on 24 September 2005 he had sexual intercourse with his daughter Larrissa Mulaguni, then aged 15 years. I shall refer to her as the victim.

2. The essential facts are these. On 24 September 2005 after midnight, at Obobulu, Ranoggah Island, Western Province, the defendant had unlawful sexual intercourse with the victim, his first daughter Miss Larrissa Mulaguni who was 15 years at the time. She was born on 17 April 1990.

3. In the evening of 24 September 2005 the victim and the defendant were on their way to a funding raising in their church. On the way the defendant stopped the complainant and told her he wanted to have sexual intercourse with her. She refused and reminded him that he was her father. The defendant held her breasts in his hands for a while and let go of them.

4. The defendant left the fund raising without the victim before it was over.

5. The victim left the show when it was over and arrived at their home after midnight. She immediately went to sleep in her corner of the single bedroom shared by the family.

6. She was awaken some time later when she felt someone touching and pulling down her pants. When she opened her eyes she found it was her father, who was lying on top of her fully naked. He told her he wanted to have sex with her.

7. He proceeded and pushed his erected penis into her vagina and continued in sexual motion. She felt pain and called out to her mother.

8. Her mother woke up, turned up the lamp and came over to where the complainant was sleeping. She saw what was happening and threw the lamp she held in her hands towards his head, but he was uninjured.

9. The defendant did not return to the family home, but he went to his village where he remained for some weeks before he returned to the family home.

10. The victim’s grandfather and aunty came to the house and her aunty took her away to her house. Later the victim and her mother reported the matter to the police. Her statement was recorded on 28 August 2005.

11. On or about 17 November 2005 the defendant was in his village and brought back to Gizo. On the same day he participated in a caution interview and admitted that he had sexual intercourse with Larrissa Mulaguni by pushing his erected penis into her vagina without her consent, and it was a wrong thing for him to do. He also told the police that she is his first daughter.

12. He was charged for the rape of his daughter after the interview.

13. After a short form preliminary inquiry the matter was committed to the High Court.

14. There was reconciliation between the tribes of the parents of the victim which was attended by the victim and both her parents.

15. The accused and his wife have now lived together since the matter was settled in custom and in Lotu (church).

16. In addition to the agreed summary of facts, the defence called by way of mitigation in the sentencing process the victim’s mother, Vera Qula. Her evidence related in part to the reconciliation process which occurred around Christmas of 2005. She said that at that time she and the victim made peace with her husband the defendant, who said sorry to the victim. She also said the victim was paid some custom money and $200 as part of the reconciliation. Her evidence was to the effect that since that reconciliation the defendant returned to live in the family home at their village in Ranogga Island, Western Province with all the children including the victim. It would appear that the victim has lived with the family since that time, except for a 2 month period immediately prior to this Court sitting when the victim was living with her aunt. Vera Qula’s evidence was that the family including the 6 children (of whom the victim is the eldest) have lived harmoniously together since Christmas 2005, and that the defendant is a good husband and now a good father to all the children including the victim.

17. As part of sentencing process, the Crown called the victim to give some evidence. She was clearly reluctant to speak of the matter at all, but when pressed she agreed she had lived with her family including the defendant from Christmas 2005 down to 2 months prior to this Court hearing when she lived with aunty Gwen in District on Gizo Island. While in a victim impact statement she stated that the reason for recently living with aunty Gwen was because of the incident with her father, she agreed to a leading question in cross examination that the reason she went to live there was to help look after two children in the care of the aunty. While her victim impact statement stated that she had not forgiven her father for what he had done to her, she contradicted that in her evidence, saying she had forgiven her father.

18. It seems from the victim impact statement, tendered by consent, that the offending has had a lasting effect on the victim, in that since then and up until today she feels ashamed about what happened and sorry for herself. This in my view clearly reflects an unfortunate but understandable loss of self esteem on the part of the victim, who is now about 20 years old. The victim impact statement also makes it clear that she still feels that the community talk about her behind her back, and that it has had an adverse effect on her relationship with boys.

19. In addition to all this material, I have listened to and considered the submissions both on behalf of the prosecution and the defence. The aggravating features of this offence as:

(a) First, that the victim was a minor of only 15 years old, while the defendant was a man of 35 years old at the time, and therefore the lasting negative impact on her of the offending is likely to be greater than if she had been a mature adult at the time.

(b) Secondly, that the act of sexual intercourse was without her consent – I comment that initially the defendant was charged with rape, generally a much more serious offence, and it is only now that the prosecution has agreed to substitute the charge of incest. The defendant is fortunate that the rape charge was not pursued, but the absence of actual consent remains a serious aggravating feature of this offending, notwithstanding the fact that under section 163(2) of the Penal Code it is not an essential ingredient to the offence of incest, and is in fact immaterial to the offence itself.

(c) Thirdly, that the offence was to an extent premeditated, the victim having rebuffed the advances of her father earlier that evening only to find that by stealth the defendant got his way in the dead of the night.

(d) Fourthly, that the offence was committed within the supposed sanctity of the family home itself, where children ought to feel secure and safe, and was a gross abuse or the position of trust which the defendant held over his vulnerable daughter.

Mitigating factors are:

20. The family has to a large extent reunited, with the defendant having said sorry to the victim and resumed living at the home with both his wife and it seems the victim also, at least up until the last 2 months in respect of the victim.

21. I say as to the reconciliation process itself that it is something of a misnomer because a reconciliation normally implies fault on each side which is forgiven by each party, whereas in this case the fault is utterly and entirely that of the defendant. I also note that of course the defendant had self interest in participating in a reconciliation process as it would have been apparent that by doing so it may ameliorate to an extent the effect of the actual offending. In any event, in my view this process, in which the defendant said sorry to the victim, is evidence of some remorse on the part of the defendant.

22. The defendant fully cooperated with police from the beginning. The defendant had a previous sound character in that he had no previous convictions except for the common assault conviction in 1991 for which he was fined $95 and which I disregard.

23. The defendant pleaded guilty at the first available opportunity to the charge of incest, that information having been laid on 31 May 2010.

24. There was some delay in bringing matter to a hearing.

25. There is an element of rehabilitation established by the resumption of an apparently harmonious relationship with his family including the victim. There is no doubt that incest is a serious offence, punishable when the victim is over the age of 12 years by a maximum of 7 years imprisonment. It is clear from the cases that there is no tariff laid down as to the appropriate sentence for this type of offending. This is because the facts vary greatly and each case must be considered on its merits.

26. I was referred to Kyio v. Reginam [2004] SBHC 90. In that case, involving an appeal against sentence by a father convicted of incest against his daughter, Chief Justice Sir Albert Palmer reduced the sentence from one of 4 years to two years with one year suspended for a year. The delay in that case was truly significant. The offence occurred in 1992, the defendant was charged in 1995, but the trial did not take place until 2004, 9 years after the defendant was charged. The Chief Justice made it clear that for this "a substantial reduction of the sentence was required". In the present case the delay, while significant, is nothing like the delay in that case.

27. Here the offending clearly has had a lasting effect on the psychological well being of the young victim.

28. I have not overlooked the evidence of the defendant’s wife Vera Qula, who said that the defendant is the provider for her whole family by undertaking fishing, farming, and selling produce at the market. She said he also is responsible for the upkeep of their house at their village. Vera Qula gave evidence that she has a baby as well as all her other 5 children (including victim) to look after, and that without her husband she could not cope. That may be, though it is clear from victim impact statement that she lives in a community where there is likely to be the support of aunties of the victim. Also, as made clear in Kyio’s case, such offenders have to take the consequences of their own actions.

29. I have had regard to the general principles of sentencing, and consider that a sentence that deters others from committing this type of act is necessary. Nothing short of a reasonable term of imprisonment will suffice, and I decline to suspend any part of the sentence.

30. I now sentence you, Rusa Qinity, to a term of 2 years imprisonment, to commence immediately.

BY THE COURT

Justice IDR Cameron
Puisne Judge